it by the proper officer ().. One or more concurrent writs may also be issued at any time within the first period, and will remain in force to the end thereof, and are capable, like the primary one, of being renewed; these being in the same form with the primary one, except that they have the word "concurrent" impressed upon them by the proper officer (k),-and being intended. for the convenience of a plaintiff, who, in the case of joint defendants residing in different places, or of a sole defendant whose residence is unknown, may wish to be supplied with several writs of the same tenor, with a view to contemporaneous service, or attempts at service, in different localities (7).

The writ, either primary or concurrent, (duly renewed, if renewal has become necessary,) must, as the general rule, not only be served on the defendant, but the service of it must, (where practicable,) be a personal one(m); that is, a copy of the writ must be left with him, showing him at the same time the writ itself, if he so requires (n). But the writ need not be served when the defendant by his solicitor agrees to accept service, and enters an appearance (o). And in other cases, if it be made to appear

(i) 15 & 16 Vict. c. 76, s. 11. (See Black v. Green, 15 C. B. 262; Anon. 1 Hurl. & C. 664.) The stamp should bear upon it the date of the renewal.

(k) Sect. 9. The stamp should bear upon it the date of issuing the concurrent writ.

(1) By sect. 14, the writ of summions may be served in any county. (m) 15 & 16 Vict. c. 76, s. 17; 36 & 37 Vict. c. 66, sched. r. 5.

(n) As to what amounts to personal service, see Goggs v. Lord Huntingtower, 12 Mee. & W. 503; Christmas v. Eicke, 6 D. & L. 40. If the writ be issued against a corpora

tion aggregate, it may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of the corporation. If against the inhabitants of a hundred or other like district, on the high constable or one of the high constables. If against the inhabitants of any franchise, liberty, city, town or place not being part of a hundred or other like district, on some peace officer thereof. (15 & 16 Vict. c. 76, s. 16. See Walton v. Universal Salvage Company, 16 Mee. & W. 438.)

(0) See 36 & 37 Vict. e. 66, sched.

r. 4.

to the court or a judge that the plaintiff is, from any cause, unable to effect prompt personal service, the court or judge may make such order for substituted or other service, or for the substitution of notice for service as may seem just (p). Moreover, whenever it appears fit to the court or a judge in a case in which the cause of action has arisen within the jurisdiction, or is properly cognizable against a defendant within the jurisdiction, that any person out of the jurisdiction should be served, such manner of service, or such notice in lieu of service, may be ordered on such terms as shall seem just (q).

Supposing personal service to be effected, and no appearance to be entered by the defendant pursuant to the exigency of the writ,-or supposing an order dispensing with personal service to be obtained, and no appearance entered, then, in either case, if the writ has a special indorsement of particulars, (which it will be recollected can only be if the claim be merely for a debt or liquidated sum of money,) the plaintiff is entitled to sign final judgment as for want of appearance (r). And this judgment

(p) 36 & 37 Vict. c. 66, sched. r. 5. As to the practice as to substituted service under the previous provision contained in 15 & 16 Vict. c. 76, s. 17, see Kitchen v. Wilson, 4 C. B. (N. S.) 483; Davies v. Westmacott, 7 C. B. (N. S.) 829.

(q) 36 & 37 Vict. c. 66, sched. r. 6.

(r) 15 & 16 Vict. c. 76, s. 27; 36 & 37 Vict. c. 66, sched. r. 7. Prior to the first of these enactments it was an invariable rule in every personal action, that, until the defendant had appeared, no judgment in the action could be awarded. But if he failed to appear after a personal service had been effected, the plaintiff might have caused an appearance to be entered for him (commonly known as an appearance sec.

stat., it having been authorized by 12 Geo. 1, c. 29); and where a personal service proved impracticable, the plaintiff might have obtained leave to take out a writ of distringas against his goods and chattels; and where the defendant had no goods capable of being seized, and was returned non est inventus, the plaintiff might have resorted to process of outlawry against him; and under this process, if the defendant, after being duly exacted and proclaimed became an outlaw, all property that he might have was forfeited and seized into the hands of the Crown; and the Court of Exchequer would make an order to apply it in satisfaction of the plaintiff's claim. As judgment may now be signed for want of appearance,

may be for any sum not exceeding the sum endorsed on the writ, together with interest at the rate specified, (if any,) to the date of the judgment; and with a regulated sum for costs: or if the plaintiff be not content with the regulated costs, then such amount of costs as the court shall tax in the particular case (s). And (under the Judicature Act, 1873) in cases in which the writ is thus specially indorsed, the plaintiff, if the defendant shall appear, may, on filing an affidavit verifying the cause of action and swearing that in his belief there is no defence to the action, call on the defendant to show cause before the court or a judge why final judgment should not be signed; and the court or judge may order judgment to be so signed, unless satisfied that there is a good defence on the merits, or unless sufficient facts be disclosed to allow the action to be defended (t).

But if, on the other hand, the writ be not specially indorsed, and if an appearance be duly entered by the defendant, and he does not at the time dispense with such a step-the plaintiff must in the next place proceed to file in court and also deliver to the defendant a printed statement of his complaint, and of the relief or remedy to which he claims to be entitled.

process of outlawry in the case above described is no longer necessary (see 15 & 16 Vict. c. 76, s. 24).

(8) Sect. 27; 36 & 37 Vict. c. 66, sched. r. 7. (As to interest in such cases, see Rodway v. Lucas, 10 Exch. 665.) Under such circumstances, however, the defendant may, even after final judgment has been signed, be let in to defend, upon an application supported by satisfactory affidavits, accounting for the non-appearance, and disclosing a defence upon the merits. (15 & 16 Vict. c. 76, s. 27.) As to this application, see Whiley v. Whiley, 4 C. B. (N. S.) 653.

(t) 36 & 37 Vict. c. 66, sched. r. 7. In all cases of ordinary account, (as in the instance of a partnership, or executorship, or ordinary trust account,) where the plaintiff in the first instance desires to have an account taken, the writ shall be endorsed with a claim that such account be taken; and in default of appearance and after appearance, unless the court be satisfied by the defendant that there is a preliminary question to be tried, an order for the account claimed shall be made "with all directions now usual in the Court of Chancery in similar cases." (Rule 8.)

And as this statement is the first of a series of mutual allegations which the parties are allowed to interchange with the view to the development of the point in controversy between them, (which allegations are technically called pleadings,) we have thus arrived at the second stage of the action.

It will, however, be proper to advert here to a collateral incident, which may occur in the case of a defendant resident within the jurisdiction, at the time that the writ issues, but who is suspected of an intention to quit England before final judgment can be obtained. Under such circumstances, then, under "The Debtors Act, 1869," if the plaintiff can show upon affidavit, to the satisfaction of a judge of the court, that he has a good cause of action against any defendant to the amount of 501. or upwards, or has sustained damage to that amount, and that there is probable cause for believing that such defendant is about to quit England, unless he be apprehended, and that his absence from England will materially prejudice the plaintiff in the prosecution of his action,-the judge may make an order that the defendant be arrested and imprisoned for a period not exceeding six months, or until he has given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of England. without the leave of the court (u). This order may be obtained ex parte at any time between the commencement of the action and final judgment: and it directs the sheriff of the county in which the action is to be tried to arrest the defendant; who remains in custody on such arrest for the time ordered, or until he shall have either given a bond to the plaintiff with two or more sureties (x), or some

(u) 32 & 33 Vict. c. 62, s. 6. If the action be for a penalty (not in respect of a contract), the prejudice to the plaintiff from the absence of the defendant need not be proved, and the security required is, that the VOL. III.

judgment recovered shall be paid, or the defendant rendered to prison. (Ibid.)

(a) Ibid. As to proceedings against the bail, see Betts v. Smyth, 2 Q. B. 113.

K K

other satisfactory security, or shall deposit in court a sum mentioned in the order by way of security (y). But it is now time to return to the progress of the action.

II. By the "Common Law Procedure Act, 1852," (15 & 16 Vict. c. 76,) great alterations were introduced into the course of the pleadings in an action previously in use; the object of the reform being to establish a method built indeed on the old foundations, but with an improved design as regards the objects of simplicity and despatch (z). Under "The Judicature Act, 1873," the rules of pleading have been again remodelled so as to adapt them to the requirements of a tribunal, which, as already explained, has drawn to itself not only the jurisdiction of the superior courts of law, but also that of other courts which were created to administer relief distinct in its nature from that afforded by an action at law.

The general result, however, contemplated by the new method is still, (as it used to be,) the development of the point in controversy between the parties, in order that, if it should turn out to be matter of law or equity, it may

(y) Reg. Gen. Mich. T. 1869, rr. 6-11, et sched. (C.) This practice is in lieu of the capias ad respondendum, under which an absconding defendant was formerly arrested or obliged to give special bail. See the following cases, which will still be useful mutatis mutandis:-Gibson v. Spalding, 11 Mee. & W. 173; Arkenheim v. Colegrave, 13 Mee. & W. 620; Daniels v. Fielding; Graham v. Sandrienelli; Talbot v. Bulkeley, 16 Mee. & W. 191, 200; Hargreaves v. Hayes, 5 Ell. & Bl. 272; Burns v. Chapman, 5 C. B. (N. S.) 481; Stein v. Valkenhuysen, 1 Ell. Bl. & Ell. 65.

(z) From a period of very remote antiquity down to the time of

passing the above Act, the "pleadings" were of a highly artificial character, and had been elaborated, by the care of judges and practitioners during many successive centuries, into a regular system or science called pleading, or more properly special pleading, which constituted a distinct branch of the law, with treatises and professors of its own. It was a system highly rated by our antient lawyers, and had at least the merit of developing the point in controversy, with the severest precision. But its strictness and subtlety were a frequent subject of complaint; and one object of the 15 & 16 Vict. c. 76, was to relax and simplify its rules.